Commencement: The bulk of the Bill's provisions
commence on a date to be fixed by Proclamation. However, if a
provision has not commenced within 9 months from the date of Royal
Assent, then it commences on the first day after the end of that
period.

The purposes of the Native Title Amendment Bill 1996 (the Bill)
include responding to the High Court's decision in Brandy v.
Human Rights and Equal Opportunity Commission(1), altering the
registration test applied to native title determination
applications, amending provisions relating to section 21
agreements, non-claimant applications and the renewal of leases and
providing for the appointment of judicial registrars to determine
the parties to native title claims and deal with unopposed or
agreed claims.

In 1992, the High Court handed down its decision in Mabo v.
Queensland (No.2). The Court noted that the common law
recognises that native title to land held by indigenous peoples may
survive the acquisition of sovereignty by a colonising power. A
majority of six Judges rejected the legal fiction of terra nullius
- the doctrine, that before white settlement, Australia was a land
belonging to no one. It held that in the case of the Murray
Islands, native title had survived up to the present day. The
Judges also noted that as the same common law prevails throughout
Australia, native title might exist on mainland Australia.

In Mabo (No.2), the High Court said that native title
is a continuation of the type of interests held in land before
sovereignty was acquired by the Crown. The nature of native title
interests therefore depends on the traditional laws and customs of
the Aboriginal group. These interests in land may range from rights
of access to land to rights of exclusive possession. Native title
cannot be transferred to others outside the system of traditional
law. However, it may be surrendered to the Crown. Native title can
also be extinguished in certain circumstances such as by
legislation, inconsistent Crown grant, inconsistent Crown
reservation or dedication, abandonment of the land or failure to
maintain traditional laws and customs in relation to the land.

The extinguishment of native title has been constrained by the
enactment of the Racial Discrimination Act 1975 (Cwlth)
which came into force on 31 October 1975. The Act prohibits
discrimination based on race in relation to the holding of
property. The High Court held in the case of Mabo v. Queensland
(No.1) that it is a breach of the Racial Discrimination
Act 1975 to extinguish native title without complying with the
same procedures by which other titles may be extinguished when
compulsorily acquired under State legislation. The Racial
Discrimination Act 1975 is a Commonwealth law. Section 109 of
the Constitution provides that when there is an inconsistency
between a valid Commonwealth law and a State law, then the State
law will be inoperative to the extent of the inconsistency.

The High Court's decision in Mabo (No.2) left
unanswered questions such as where native title exists, who holds
native title and the nature of native title. It also opened up the
possibility of extensive litigation in the High Court, Federal and
State and Territory courts. In October 1992, the then Government
announced that it would commence consultations with stakeholders
and establish an interdepartmental committee to carry out the
consultations and report to the responsible Ministers. In January
1993, the then Prime Minister announced his intention to introduce
national native title legislation. The Native Title Act
1993 was enacted in order to provide a statutory framework for
deciding questions left unanswered by the Mabo decision.(3)

The Native Title Act 1993:

recognises and protects native title rights and interests;

validates Commonwealth acts that would otherwise be invalid due
to the existence of native title;

enables the States and Territories to validate past acts,
including titles they have granted, without breaching the
Racial Discrimination Act 1975 if they comply with
Commonwealth rules about the extinguishment of native title;

creates a National Native Title Tribunal and provides for the
establishment of recognised State and Territory bodies to deal with
certain things - such as determining native title claims and
compensation claims;

sets out how acts affecting native title may be done in the
future - this includes a right to negotiate on certain types of
future acts and compensation where native title is extinguished or
impaired as a result of those acts.

The Government of Western Australia challenged the
constitutional validity of the Native Title Act 1993. At
the same time, the Wororra and Martu Peoples challenged the
validity of the Land Titles and Traditional Usage Act 1993
(WA). The Land Titles and Traditional Usage Act 1993
purported to extinguish any surviving native title in Western
Australia and replace it with more limited statutory rights to
traditional usage of land.

In 1995, the High Court brought down its decision in the Native
Title Act Case.(4) With the exception of section 12, the High Court
found the Native Title Act 1993 to be a valid exercise of
the Commonwealth's races power.(5) The Court held that section 12
could be severed from the rest of the Act without affecting the
validity of the remaining provisions. The High Court held the
Land Titles and Traditional Usage Act 1993 was
inconsistent with the Racial Discrimination Act 1975
(Cwlth) and the Native Title Act 1993 and thus inoperative
by virtue of section 109 of the Constitution.

In October 1994, in the case of Brandy v. Human Rights and
Equal Opportunity Commission(6), the High Court of Australia
held that provisions of the Racial Discrimination Act 1975
relating to the enforcement of determinations by the Human Rights
and Equal Opportunity Commission were invalid.(7) This decision is
relevant to certain proposals contained in the Native Title
Amendment Bill 1996.

Under amendments made to the Racial Discrimination Act in 1992,
decisions of the Human Rights and Equal Opportunity Commission
could be registered in the Federal Court. On registration, the
decisions took effect as if they were Federal Court orders. The
Human Rights and Equal Opportunity Commission is an administrative
not a judicial body. The High Court held that the effect of the
provisions was that the Commission could make decisions which
became binding and enforceable. This was held to be an exercise of
judicial power and to infringe the separation of powers doctrine in
the Constitution. The doctrine means that the judicial power of the
Commonwealth can only be exercised by a what is called a Chapter
III court.

Under the Native Title Act 1993, the National Native
Title Tribunal has the power to make determinations about the
existence (or non-existence) of native title. This power can only
be exercised where the application is unopposed or the parties
agree. A determination is registrable in the Federal Court and
enforceable as an order of the Court. The decision in
Brandy suggests that this may be an infringement of the
separation of powers doctrine.

The National Native Title Tribunal has developed an
administrative response to the Brandy decision, pending
amendments to the Native Title Act 1993. If, at the
conclusion of mediation the parties in a claimant application reach
an agreement, the Tribunal advises them to frame the agreement in
the manner of a consent order suitable for filing in the Federal
Court. The claimant application is then referred to the Federal
Court by the Registrar and, on lodgment of the application in the
Federal Court, the parties can seek a consent order for a
determination in the terms of their agreement. Administrative
procedures have also been devised for non-claimant applications.(8)

In Western Australia v Lane(9), the Federal Court of
Australia took the view that once a native title claimant had
lodged a claim with the National Native Title Tribunal, the
claimant became a 'registered native title claimant.' A 'registered
native title claimant' has the right to negotiate and the right to
be notified in relation to certain permissible future acts under
the Native Title Act 1993.(10) This decision attracted
some criticism. An alternative view to the one expressed by the
Federal Court is that a person obtained these rights only after
their claim had been accepted. After the decision in Western
Australia v. Lane, the National Native Title Tribunal amended
its procedures so that applications are entered onto the Register
of Native Title Claims on lodgment rather than on acceptance of the
claim.

In the Waanyi (11)case, the High Court of Australia
might have considered the question of the effect of pastoral leases
on native title but did not do so. The court focussed instead on
procedural questions surrounding the rejection of a claimant
application for a native title determination by the President of
the National Native Title Tribunal.

The President had determined that the application should be
rejected on the basis that the Waanyi People's claim could not be
made out because their title had been extinguished by a pastoral
lease. The High Court held that the President and the Registrar of
the National Native Title Tribunal had adopted a procedure outside
the ambit of section 63 of the Act and in doing so had considered
material and information that they were not entitled to consider.
The High Court also held that an application for a native title
determination cannot be rejected if the claim is 'fairly arguable.'
As a result, the National Native Title Tribunal must accept claims
that are 'fairly arguable.'

In Waanyi, the High Court also suggested that the grant
of a pastoral lease on native title was a 'fairly arguable'
question of law.

There has been considerable discussion about the Native
Title Act 1993 and a number of substantive proposals for its
amendment. For example, in March 1995 the President of the National
Native Title Tribunal, Justice Robert French, circulated a
Discussion Paper on Proposed Changes to the Native Title Act
1993.

In September 1995, the Department of the Prime Minister and
Cabinet and the Attorney-General's Department circulated a document
entitled Outline of Proposed Amendments to the Native Title Act
1993.(12) Many of the proposals detailed in the document were
the then Government's response to the High Court's decision in
Brandy v. Human Rights and Equal Opportunity
Commission.

In 1995, the previous Government introduced the Native Title
Amendment Bill 1995 into Parliament. This Bill lapsed due to the
calling of the 1996 General Election. The Explanatory Memorandum to
the Native Title Amendment Bill 1996 asterisks proposed amendments
which were contained in the Native Title Amendment Bill
1995.(13)

In May 1996, the Government released a paper entitled
Towards a More Workable Native Title Act. An Outline of
Proposed Amendments. This paper was prepared after
consultations conducted by Senator Nick Minchin. Some of the
matters foreshadowed in the Outline Paper are contained in the
Native Title Amendment Bill 1996. The Bill's Second Reading Speech
states:

The Government intends to address all
the issues considered in the Outline Paper released in May this
year. However, the Bill does not contain all of the measures
described in that Paper as some of the Government's proposed
amendments. It became obvious early in the consultation process
that some proposals would be of much greater interest to, and have
a greater impact upon, interest groups than would others. </
ul>

In particular, the right to negotiate
provisions and the proposals to impose statutory rights and
obligations on Aboriginal/Torres Strait Islander bodies are the
subject of detailed submissions and ongoing consultation ... </
ul>

To include those proposals in the
Bill would have pre-empted consultations of these key issues, and
would have left insufficient time for serious consideration of the
submissions made in response to the deadline for submissions of 18
June 1996. </ ul>

The Government will therefore move
amendments to this Bill in the Budget session to deal with the
right to negotiate provisions in the Act and with the role and
responsibilities of representative bodies. There may well be other
issues which emerge during that consultation process which need to
be addressed at that time. </ ul>

Under the Native Title Act 1993, applications for
native title determinations are made to the National Native Title
Tribunal. If a Presidential member of the Tribunal decides that an
application should not be accepted then the applicant has a right
of appeal to the Federal Court of Australia. Where an application
that has been accepted by the Tribunal is unopposed or the parties
reach agreement after mediation, then the Tribunal may make a
determination of native title. Otherwise, the application must be
referred to the Federal Court for hearing and determination.

Part 1 of Schedule 1 of the Bill is the
Government's response to the High Court decision in Brandy v.
Human Rights and Equal Opportunity Commission. In particular,
references to the Native Title Registrar and the National Native
Title Tribunal in the Native Title Act 1993 are omitted
and replaced with references to the Federal Court. The effect of
the changes is that an application for a native title determination
will be made to the Federal Court, as will applications for
compensation in relation to acts affecting native title. In
addition, where an approved determination of native title is to be
made, it must be decided whether the native title is to be held in
trust and, if so, by whom. Under the Act as it stands, both the
National Native Title Tribunal and the Federal Court can make such
determinations. The proposed amendments mean that only the Federal
Court will be able to make such determinations.

Item 23 of Schedule 1 repeals sections 63, 64
and 65 of the Native Title Act 1993. Section 63 of the
Native Title Act 1993 provides that the Native Title
Registrar must accept a native title determination application if
the application contains certain information, if certain material
accompanies the application and unless the Registrar considers that
the application is frivolous or vexatious or that prima
facie the claim cannot be made out. Section 64 of the
Native Title Act 1993 deals with applications for native
title determinations that are not accompanied by the material
required by section 62 of the Native Title Act 1993.
Section 65 of the Native Title Act 1993 sets out the powers of the
Registrar and Presidential Members in relation to native title
applications.

Item 23 of Schedule 1 also inserts new
section 63. New section 63 provides that if an application
that complies with sections 61 and 62 of the Native Title Act
1993 is filed in the Federal Court then, as soon as
practicable, the Federal Court must provide a copy of the
application to the Native Title Registrar. Section 61 of the
Native Title Act 1993 provides that an application for a
native title determination must be in the prescribed form and
contained prescribed information. Section 62 of the Native
Title Act 1993 provides that certain material is to accompany
applications by native title claimants. At present, this
material is an affidavit, information known to the applicant about
other interests relating to the land or waters, a description of
the area over which native title is claimed and the name and
address of the claimant, any prescribed documents and the
prescribed fee.(14)

Item 21 of Schedule 1 amends section 62 by
adding to this material details of any other native title
applications to the High Court, the Federal Court or a recognised
State or Territory body known to the claimant that relate to the
area and details of any notices under 24A or 29 of the Native
Title Act 1993 or under equivalent State or Territory
legislation.

Item 24 of Schedule 1 repeals subsection 66(1)
of the Native Title Act 1993 and inserts new
subsection 66(1). As presently worded, subsection 66(1)
requires the Registrar, after accepting a claimant application, to
notify persons whose interests might be affected. New
subsection 66(1) will also give the Registrar a discretion
to notify 'such other persons as the Registrar considers
appropriate.'

Item 28 of Schedule 1 amends paragraph
66(3)(b). At present, a section 66 notice must state that a person
who wants to be a party to a claimant application must notify the
Registrar in writing within two months from the day the notice is
given. New paragraph 66(3)(b) will substitute a
period of three months for the period of two months.

Item 36 of Schedule 1 repeals subsection 84(1)
of the Native Title Act 1993 and substitutes new
subsections 84(1), (1A), (1B) and (1C). Under new
paragraph 84(1A)(b), a person can become a party to
proceedings by notifying the Federal Court in writing. This
provision is in addition to:

new subsection 84(1) which provides that the
applicant is a party; and

new paragraph 84(1A)(a) which provides, in
part, that a person whose interests may be affected by a
determination in the proceedings and who has notified the Federal
Court in writing within the specified period, is a party to the
proceedings.

Under new subsection 84(1B), the State or
Territory in which a claim falls will be a party unless the State
or Territory Minister gives written notice that he or she does not
want to be a party. Under new subsection 84(1C),
the Commonwealth may, at any time, become a party to a compensation
application made under section 61 of the Native Title Act
1993.

Item 38 of Schedule 1 inserts new
section 84A which provides, among other things, that the
Commonwealth Minister may intervene at any time in a proceeding
before the Federal Court under the Native Title Act 1993
by giving written notice to the Federal Court.

Under subsection 72(1) of the Native Title Act 1993,
the President of the National Native Title Tribunal must direct the
holding of a conference of parties or their representatives in
order to help resolve an application that is opposed.

Under the proposed amendments, the National Native Title
Tribunal will primarily become a mediation body.

Item 39 of Schedule 1 inserts new
Division 1A - Reference to NNTT for mediation. New subsections
86A(1) and 86A(2) describe the purposes of mediation in
relation to native title and compensation applications. New
subsection 86A(3) provides that the Federal Court must
refer every native title and compensation application to the
National Native Title Tribunal for mediation. However, there is
provision in new subsection 86A(5) for the Federal
Court on its own motion or on an application by a party to the
proceedings to make an order that there will be no mediation in
relation to all or part of the proceeding.

In addition, the Court may order mediation to cease [new
subsection 86A(9)] and a party can apply for mediation to
cease [new subsection 86A(10)]. New
subsection 86A(13) provides that the Court may determine
questions of law or fact referred to it by the National Native
Title Tribunal during mediation.

In relation to unopposed applications, new section
86C provides that the Federal Court may make an order
consistent with the terms sought by the applicant without a hearing
taking place.

Item 49 of Schedule 1 inserts new Division 4A
into the Native Title Act 1993. New Division
4A relates to mediation conferences.

New section 136A provides that if the Federal
Court refers the whole or part of a matter to the National Native
Title Tribunal under new section 86A, then the
President must issue a direction that a mediation conference be
held. Under new section 136A(2) a conference must
be presided over by a member of the Tribunal. New section
136B enables the President of the National Native Title
Tribunal to engage consultants to conduct mediation. In such a
case, the consultant is regarded as a member of the Tribunal
[new subsection 136B(2)].

Under new subsection 136C(1), the member
presiding over a mediation conference may order a party or parties
not to attend or be represented at a mediation conference. This may
only be done if the presiding member '... considers it would assist
the resolution of a matter that is the subject of mediation'
[new subsection 136C(2)].

Under new section 136E, questions of law or
fact arising during a mediation may be referred by the presiding
member to the Federal Court.

Under new section 136F, mediation conferences
must be held in private. Under new section 136G
the presiding member at a mediation conference may prohibit the
disclosure of evidence.

Under new section 136H, when mediation is
concluded the presiding member must provide a written report to the
Federal Court setting out the results of the mediation.

Under section 63 of the Native Title Act 1993, the
Registrar must accept an application for a determination of native
title unless he or she is of the opinion that:

the application is frivolous or vexatious; or

prima facie, the claim cannot be made out.

Under the Native Title Act 1993, if the Registrar
declines to accept an application then it is referred to a
Presidential Member of the Tribunal. If the Presidential Member
takes the same view as the Registrar, then the applicant must be
notified and given the opportunity to show that the application is
not frivolous or vexatious or that, prima facie, a claim can be
made out. The Presidential Member, if satisfied by the applicant,
must direct the Registrar to accept the application. If not so
satisfied, then the Presidential Member must direct the Registrar
not to accept the application. In the latter case, the applicant
can appeal to the Federal Court of Australia.

Until the decision of the Federal Court in Northern
Territory v. Lane, the Tribunal took the view that an
application should not go on to the Register until it had been
accepted by the Registrar. From September 1995, the Tribunal
amended its procedures so that applications were entered on the
Register on lodgment. The Tribunal also set a limit of three months
as the period during which applications would be accepted or
referred to a Presidential Member.(15)

Part 2 of Schedule 1 deals with criteria for
the registration of native title claims.

Item 96 inserts new section
190A. New subsection 190A(4) sets out the
information that the Native Title Registrar must consider when
deciding whether to accept a claim for registration in the Register
of Native Title Claims - including information in the application,
information about the claim supplied by the Commonwealth, a State
or a Territory and other information that the Registrar considers
appropriate.

Before accepting a claim for registration, the Registrar must
also be satisfied that the claim meets the conditions set out in
new subsections 190A(7)-(10). The Registrar must
accept the claim if these conditions are satisfied and cannot
register the claim if they are not satisfied:

first, the Registrar must be satisfied that, prima facie, each
of the native title rights and interests claimed can be established
[new subsection 109A(7)];

second, the Registrar must be satisfied that the application
contains such things as sufficient information to identify the area
claimed, a map showing the boundaries of the claim area, details of
searches carried out to identify any interests in the area claimed,
reasons for not conducting any searches that could be relevant to
the claim, sufficient description of the native title rights and
interests claimed to allow them to be identified, details of the
factual basis of the claim, details of any current use of the land
by the native title applicants and, if relevant, information about
common or group rights in relation to the area claimed [new
subsection 109A(8)].

third, the Registrar must be satisfied that all searches that
could have been reasonably carried out and are relevant to
determining the existence of other interests in the land or waters
have been carried out [new subsection
109A(9)].

fourth, the Registrar must be satisfied that the application
does not disclose that the claim covers any land or waters covered
by ordinary title or residential or commercial leases except for
pastoral or agricultural leases, or a lease granted to Aboriginal
people or Torres Strait Islanders [new subsection
109A(10)].

New subsection 109A(11) provides that if a
claim is not registered, then the Registrar must give notice to the
Federal Court and the claimant - including reasons for the
decision.

New subsection 109A(12) provides that if the
Registrar does not register the claim then the claimant may appeal
the Registrar's decision to the Federal Court. In making a decision
on such an appeal, the Federal Court must apply the test for
registration set out in new subsections
109A(7)-(10) [new subsection 109A(13)].

Under section 21 of the Native Title Act 1993, there is
provision for agreements to be entered into between Governments and
the holders of native title without recourse to lengthy and
expensive court proceedings. There does not appear to be anything
in section 21 that prevents third party beneficiaries of such
agreements from being a party to a section 21 agreement. It also
appears that section 21 agreements can be used by common law
holders of native title as well by those who have been granted a
determination under the Native Title Act 1993.

Item 99 of Part 3 of Schedule 1 inserts
new section 21A into the Native Title Act
1993. New section 21A relates to agreements
to surrender native title or to authorise a future act where there
has been an approved determination of native title and the
registered or common law holders of native title make a section 21
agreement and subsequently an approved determination of
native title is made that other persons hold or also hold native
title in relation to the area.

Under new section 21A(2) if such a situation
arises then future acts done before the making of the subsequent
native title determination are valid. Compensation is payable to
those who hold native title under the subsequent determination if
the future act extinguishes their native title or if the future act
does not extinguish their native title and they would otherwise be
entitled to compensation.

Compensation is payable by the Commonwealth if the act is
attributable to the Commonwealth and by a State or Territory if the
act is attributable to a State or Territory [new subsection
21A93)].

Item 100 inserts new paragraph
26(3)(aa) into the Native Title Act 1993.
New paragraph 26(3)(aa) provides that the right to
negotiate does not apply to an act covered by a section 21
agreement.

Item 104 of Schedule 1 inserts new
sections 24A, 24B and 24C into the Native Title Act
1993. New section 24A enables registered
native title claimants, determined native title holders and
governments to reach an agreement to allow future acts other than
those covered by the right to negotiate (16) - even where the acts
might be otherwise impermissible. Impermissible future acts are
acts which are not permissible future acts.(17) Permissible future
acts are defined in section 235 of the Native Title Act
1993. Generally speaking, an act is a permissible future act
if it could be done if 'the native title holders instead held
freehold title (or leasehold in the ACT and Jervis Bay Territory)
except where such title exists only for the benefit of Aboriginal
or Torres Strait Islander people.'(18)

Under new section 24A, no party to a section
24A agreement is entitled to compensation in relation to the effect
of the act on native title, other than compensation provided for in
the agreement [new paragraph 24A(1)(c)].

New section 24A sets out the conditions that
must be met before an agreement under new section
24A can be made [new subsections
24A(2)-(6)]. For example, acts which are subject to the
right to negotiate are not covered by section 24A, the Government
party must give notice of the act including public notice, any
registered native title body corporate affected by the act must be
a party to the agreement, certain registered native title claimants
must be parties (19) and a grantee party may be a party to the
agreement.

Under new subsection 24A(8), the parties may
request assistance from the National Native Title Tribunal or a
recognised State/Territory body in negotiating an agreement under
section 24A.

Under new subsection 24A(10), the agreement may
be made for any consideration and subject to any conditions agreed
to by the parties except for consideration or conditions that are
unlawful.

New section 24B relates to future acts done by
Governments where there is no native title claim at the end of a
three month notice period and no existing determined native title
holders. New section 24B will apply if:

the act is not an act to which the right to negotiate applies;
and

the Government has fulfilled certain notice requirements -
notice must be given to the relevant representative Aboriginal or
Torres Strait Islander body, any grantee party and the National
Native Title Tribunal; and

notice is given to the public in the determined way; and

at the end of three months from the date of notification, there
is no 'relevant native title claim' and no native title
determination; and

immediately before the act is done there is no registered
native title body corporate in relation to land or waters affected
by the act [new subsection 24B(1)].

If new section 24B applies to an act then the
act is valid, the non-extinguishment principle applies to the act
and, in certain circumstances, compensation will be payable to
native title holders [new subsection 24B(2)].

New subsection 24B(4) defines the expression
'relevant native title claim.' A 'relevant native title claim' will
exist if, for example, at the end of the notice period specified in
new paragraph 24B(1)(d), there is a registered
native title claim or if, after the expiration of the notice
period, there is a registered native title claim which was placed
on the Native Title Register after a successful appeal to the
Federal Court under new subsection 190A(12) and
the appeal occurred not more than 28 days after the Native Title
Registrar gave notice of refusal to register the claim.

New section 24C sets out who pays compensation
under new sections 24A and 24B. In brief, if the
act is attributable to the Commonwealth then the Commonwealth pays
the compensation. If the act is attributable to a State or
Territory, then the State or Territory pays the compensation.
New subsection 24C(2) provides that the Crown may
make an agreement with the grantee party about the payment of
compensation under new section 24C.

Under section 24 of the Native Title Act 1993, future
acts will be valid when done over areas covered by an unopposed
non-claimant application, if the future act occurs before any
native title determination is made. Part 5 of Schedule
1 of the Native Title Amendment Bill 1996 amends
provisions relating to section 24 protection. These provisions
appear to carry over the current effect of sections 24 and 67.
Where a claim is accepted over part of an area covered by a
non-claimant application, then section 24 protection will be
removed completely in the case of a government non-claimant
application. Where a claim is accepted over part of an area covered
by a non-government non-claimant application, then the protection
given by section 24 will be read down to exclude the overlapping
area.

Where a government makes a non-claimant application, new
subsection 24(3) applies. In the case of a government
non-claimant application, section 24 protection applies at a
particular time if, before that time, a government has made a
non-claimant application, the whole of the area in question is
covered by the application, the notice period has expired, there is
no relevant native title claim over any part of the area, the
application is still on foot and there is no entry on the National
Native Title Register that native title exists in relation to the
area or a part of the area.

Where a non-government non-claimant application is made
new subsection 24(4) applies. Where a
non-government non-claimant application is made, section 24
protection will arise in relation to an area at a particular time
if, before that time, a non-claimant application has been made
which is not a government non-claimant application, the area is the
whole or part of the area covered by the application, the notice
period has expired, there is no relevant native title claim, the
application is still on foot and there is no entry in the National
Native Title Register that native title exists in relation to the
area or a part of the area.

The expression 'relevant native title claim' is defined in
new subsection 24(6).

The notice period for section 24 protection for government and
non-government non-claimant applications is set out in new
paragraph 66(3)(a). The notice period is 3 months and
commences on the day that the notice of a non-claimant application
is given.

The Native Title Act 1993 contains a regime covering
future dealings affecting land or waters (future acts) and native
title rights. Under section 25(1) of the Native Title Act
1993, a future act is valid if it 'consists of the renewal of
any interest in relation to land or waters that takes place in the
exercise of a legally enforceable right that was created before 1
January 1994.' Although such acts are valid, they do not extinguish
native title and compensation may be payable to native title
holders.(20)

Under section 235(7) of the Native Title Act 1993, as
presently worded, a renewal, re-grant or extension of a commercial,
agricultural, pastoral or residential lease will be a permissible
future act, provided that the lease does not create a proprietary
interest where previously only a non-proprietary interest was
created by the lease, and provided that the lease does not enlarge
a proprietary interest.

Item 112 of Schedule 1 repeals section 25(1) of
the Native Title Act 1993 and inserts replacement
subsections. In conjunction with this repeal, item 114 of
Schedule 1 repeals subsection 235(7) of the Native
Title Act 1993.

Acts to which new section 25 will apply include
permissible lease renewals, permissible pastoral lease renewals,
permissible pastoral lease variations and permissible pastoral
lease related acts. The leases and other interests which are
covered are those that existed before the Native Title Act
1993 commenced operation on 1 January 1994.

A 'permissible lease renewal' is defined in new
subsection 25(1B). In specified circumstances, the
renewal, re-grant or extension of the term of a mining lease will
be a future act that is a permissible lease renewal. At present,
under subsection 235(7) of the Native Title Act 1993, a
permissible future act does not include the renewal, re-grant or
extension of a mining lease.

Other permissible lease renewals covered by new
subsection 25(1B) include commercial, agricultural,
pastoral or residential leases (these types of leases are covered
by present subsection 235(7)).

The renewal, re-grant or extension of the leases covered by
new subsection 25(1B) will not be a permissible
lease renewal if a proprietary interest is created where only a
non-proprietary interest previously existed or if a larger
proprietary interest is created. In addition, if the lease is
subject to a reservation in favour of indigenous people then the
same reservation must continue (as is the case at present under
section 235(7) of the Native Title Act 1993).

New subsection 25(1C) provides that, in certain
circumstances, a future act will be a 'permissible pastoral lease
renewal.' To qualify as a 'permissible pastoral lease renewal,' any
reservation in favour of indigenous people must be preserved, and,
if the lease did not allow mining, mining cannot be permitted by
the renewal.

New subsection 25(1D) provides that a lease
will be a permissible pastoral lease renewal (if the lease is an
eligible pastoral lease (21)), even though the renewed, re-granted
or extended lease:

permits the lessee to use the land or waters covered by the
lease for a non-pastoral purpose (other than mining);

contains a proprietary interest where previously it contained
only a non-proprietary interest;

creates a larger proprietary interest than previously contained
in the lease; or

is a perpetual lease.

New subsection 25(1E) relates to future acts
that are 'permissible pastoral lease variations.' A permissible
pastoral lease variation enables a lessee to use land or waters
covered by a pastoral lease for purposes which are non-pastoral
(other than mining). Examples provided in the Explanatory
Memorandum of such variations include the variation of a lease to
permit the sowing of fodder crops, conduct feedlot operations or
engage in farm-related tourism.(22)

New subsection 25(1F) states that a future act
will be a 'permissible pastoral lease related act' if the lessee of
a pastoral lease uses the land or waters covered by the lease for a
non-pastoral purpose (not including mining) that:

... does not cause the land or waters
covered by the lease to cease being used, or being capable of being
used, solely or primarily for: </ ul>

(a) maintaining or breeding sheep,
cattle or other animals; or </ ul>

(b) any other pastoral purpose. </
ul>

Under new section 25(1A), if section 25 applies
to an act then the non-extinguishment principle applies and native
title holders will be entitled to compensation if native title has
survived and is affected by the renewal, regrant or extension of
the lease.

Item 132 of Schedule 1 inserts new
subsection 183(4A) which provides that the
Attorney-General cannot authorise assistance in proceedings for a
native title claimant. The purpose of this amendment is to reflect
Government policy that in such cases funding should be provided by
representative Aboriginal and Torres Strait Islander bodies (23)
or, in certain circumstances, by the Aboriginal and Torres Strait
Islander Commission.

Schedule 2 of the Native Title Amendment Bill
1996 amends the Federal Court of Australia Act 1976 in
relation to the appointment, powers and functions of Judicial
Registrars. These are contingent amendments. If certain amendments
to the Federal Court of Australia Act 1976 providing for
the appointment of Judicial Registrars come into effect before the
corresponding amendments in the Native Title Amendment Bill 1996
commence, then the corresponding amendments are omitted
[Part 2 of Schedule 2].

Part 1 of Schedule 2 of the Bill consists of
the corresponding amendments and concerns Judicial Registrars of
the Federal Court.

New section 18AB of the Federal Court of
Australia Act 1976 sets out the powers of Judicial Registrars.
The amendments will allow Federal Court Judges to make Rules of
Court delegating to Judicial Registrars the power to determine
parties to proceedings under the Native Title Act 1993 and
to make orders in relation to unopposed applications and where the
parties reach agreement.

New section 18AC provides that a party to
proceedings may seek a review of a Judicial Registrar's exercise of
the powers delegated to him or her.

The purpose of the registration test
... is to prevent claims with no reasonable chance of success from
hindering other land use. If the threshold test is too high, there
is a real risk that native title rights will be unfairly affected.
If the threshold is too low, there is a risk that development will
be unnecessarily impeded. </ ul>

One important consequence of registration under the Native
Title Act 1993, as it presently stands, is that registration
enables a claimant to access the right to negotiate process in
relation to certain future acts. The right to negotiate is not a
right of veto. Future acts attracting the right to negotiate are
acts that create or vary a right to mine, that extend the period of
a right to mine in some circumstances, or that involve compulsory
acquisition of native title rights by a Government where the
purpose of the acquisition is to confer rights on third parties.
Additionally, to attract the right to negotiate, the future act
must either validly affect native title or it must be invalid to
some extent because of its impact on native title.

Under the amended Act, registration of a native title claim will
also be important to preclude section 24 protection arising when a
claim is made in response to a non-claimant application and to gain
native title party status in response to a section 24A or 24B
notice.

Various views can be taken about the proposed registration test.
These include:

the proposed test is essential to weed out unmeritorious claims
- especially because registration enables a claimant to access the
right to negotiate process;

the proposed registration test constitutes a substantial hurdle
and exists in addition to strike out procedures available in the
Federal Court. Native title claimants are thus subject to double
jeopardy, increased costs and a process that will result in delays
in the making of native title determinations;

another approach would be to provide that all applications for
a native title determination are accepted when lodged in the
Federal Court with no registration test being applied by the
Registrar.(24) Ordinary strike out procedures in the Federal Court
would be available for unmeritorious or vexatious
applications;

the threshold of the proposed registration test is
unnecessarily high. For example, the proposed amendments require
the Registrar consider that, prima facie, each of the native title
rights and interests claimed can be established;

the proposed registration test is based on misconceptions about
the right to negotiate - a right that applies only to a subclass of
future acts;

the threshold of the proposed registration test is appropriate
given that registered claimants will have access to the right to
negotiate. The exercise of this right may jeopardise investment
even though it will not prevent a future act from going ahead. In
addition, failure to comply with right to negotiate procedures may
affect the validity of a future act which goes ahead;

a substantial registration test will assist native title
claimants to put together their case for a native title
determination and will result in better prepared and more
expeditiously determined native title claims;

whether the registration test provided for in the Bill will
ensure that the registration process remains an ex parte one - that
is, one essentially involving the applicant or whether it will
become a mini determination process. For example, new paragraph
190A(4)(c) provides that, in considering a claim the Registrar may
have regard to 'such other information as he or she considers
appropriate.'

The Native Title Amendment Bill 1996 replaces access to legal
aid funding for native title claimants with funding from
representative bodies. There is some potential for difficulty with
this approach. Difficulties may arise, not only there is no
representative body in an area, but when the representative body
denies funding or when there are competing native title claimants
in an area covered by one representative body. In other words,
there may be circumstances where it is appropriate for the
Attorney-General to authorise funding of native title claimants. It
particular, it should be noted that 'proposals to impose statutory
rights and obligations on representative Aboriginal/Torres Strait
Islander bodies' (25) are not included in the Native Title
Amendment Bill 1996 because they are the subject of ongoing
consultation.

For a response to the Discussion Paper see Aboriginal and
Torres Strait Islander Social Justice Commissioner, Response to
the Commonwealth Government's 1995 Proposed Amendments to the
Native Title Act 1993, 18 October 1995.

Acts that are subject to the right to negotiate are found in
section 26 of the Native Title Act 1993. They include the
creation or variation of a right to mine, compulsory acquisition of
native title rights and acts approved by the Commonwealth
Minister.

Section 236, Native Title Act 1993.

Department of the Prime Minister and Cabinet, op.cit, p.9.

This includes any person who, at the end of the three month
notification period, is a registered native title claimant and, in
certain circumstances, a person who becomes a registered native
title claimant after the end of the notification period. These
circumstances include the situation where a native title claim is
registered after a successful appeal to the Federal Court after the
Registrar has refused to register the claim and the appeal was made
within 28 days after notice of the Registrar's rejection of the
claim was given.

Paragraphs 25(1)(a),(b)&(c).

An eligible pastoral lease is a lease that permits the lessee
to use the land or waters covered by the lease solely or primarily
for maintaining or breeding sheep, cattle or other animals; or any
other pastoral purpose (section 248(a), Native Title Act
1993).

Explanatory Memorandum, op.cit., p.37.

A representative body is a body which is the subject of a
determination under section 202(1) of the Native Title Act
1993. Under the Act, the Minister may determine that a body is
a representative body for a specific area if the Minister is
satisfied, among other things, that the body is broadly
representative of the indigenous peoples of that area.
Representative bodies have certain functions under the Native
Title Act 1993 including facilitating the making of native
title claims.

This view was taken by the President of the National Native
Title Tribunal in his Discussion Paper on Proposed Changes to
the Native Title Act 1993.

This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.

PRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
the public.

Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.

Published by the Department of the Parliamentary Library,
1996.

This page was prepared by the Parliamentary Library,
Commonwealth of Australia
Last updated: 29 August 1996